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Montano v. Bonnie Brae Convalescent Hosp., Inc.

United States District Court, C.D. California

January 7, 2015


Page 1121

For Hector Montano, an individual, Plaintiff: David Grant Geffen, David Geffen Law Firm, Santa Monica, CA.

For Bonnie Brae Convalescent Hospital Inc, Defendant: Bruce Benjamin, Law Offices of Bruce Benjamin, Los Angeles, CA.

For Cynthia Fisk Pasternak, Mediator (ADR Panel): Cynthia F Pasternak, Pasternak Pasternak & Patton, Los Angeles, CA.


Fernando M. Olguin, United States District Judge.

Page 1122



On May 29, 2012, Hector Montano (" plaintiff" ) filed the operative First Amended Complaint (" FAC" ) against Bonnie Brae Convalescent Hospital, Inc. (" defendant" or " Bonnie Brae" ), and Does 1-10, inclusive. Plaintiff alleges violations of the Fair Housing Act (" FHA" ), 42 U.S.C. § § 3601, et seq.; the California Fair Employment and Housing Act (" FEHA" ), Cal. Gov't Code § § 12900, et seq.; the Unruh Civil Rights Act, Cal. Civ. Code § § 51, et seq.; the California Disabled Persons Act (" CDPA" ), Cal. Civ. Code § § 54, et seq.; the Rehabilitation Act of 1973 (" Rehabilitation Act" ), 29 U.S.C. § § 701, et seq.; and California Unfair Business Practices Act (" Section 17200" ), Cal. Bus. & Prof. Code § § 17200, et seq. (See FAC at ¶ ¶ 17-54). Plaintiff also asserts claims of intentional infliction of emotional distress, reckless neglect, tort per se, and negligence. (See id. at ¶ ¶ 55-75). Plaintiff, who has quadriplegia and relies on a wheelchair for mobility, alleges that defendant, the operator of a skilled nursing home facility, discriminated against him because of his disability by, among other things, failing to accommodate his disability in various ways and provide him with accessible facilities. (See id. at ¶ ¶ 1-2, 7-16 & 19-21).

A bench trial was held and the court, having heard live testimony and duly considered the evidence, the credibility of the witnesses, the entire file and the contentions and arguments of counsel,[1] hereby makes the following findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.


1. Plaintiff Hector Montano (" plaintiff" ) is an individual with a mobility disability

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as defined in applicable federal and state disability laws, including the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101, et seq., the FHA, the FEHA, the Unruh Civil Rights Act, and the Disabled Persons Act. (See Pretrial Conference Order (" PTO" ) at 2, ¶ 1; Testimony of [Plaintiff] Hector Montano (" Montano Decl." ), Dkt. No. 49, at ¶ 3).

2. Plaintiff is paralyzed from the chest down and uses a motorized wheelchair for mobility. (See PTO at 3, ¶ 2). Plaintiff cannot transfer to and from his wheelchair independently. (See id. at ¶ 8).

3. He has limited use of his hands and cannot grasp objects. (See PTO at 3, ¶ 6).

4. Due to plaintiff's disability, he cannot regulate his body temperature and is therefore endangered if he is exposed to temperature extremes. (See PTO at 3, ¶ 10).

5. Plaintiff is diabetic. (See PTO at 3, ¶ 7).

6. Plaintiff requires extensive assistance with his activities of daily living. (See PTO at 3, ¶ 9).

7. Defendant is a California corporation that owns and operates a 60-bed skilled nursing home facility, located at 420 South Bonnie Brae Street in Los Angeles. (See PTO at 3, ¶ 3).

8. Defendant receives both Medicare and Medi-Cal funds. (See Reporter's Transcript (" RT" ) at 66).

9. More than half of defendant's residents use wheelchairs. (See RT at 79-80, 88).

10. Plaintiff has been an adult resident of Bonnie Brae since 2009. (See PTO at 3, ¶ 5).

11. From April 2009 to January 11, 2012, plaintiff lived in Room 20, a two-person room. (See PTO at 3, ¶ 11; RT at 15-16).

12. Plaintiff could not use the bathroom in Room 20 without assistance. (See RT at 52). For example, the door to the bathroom in Room 20 was equipped with a knob handle, which required more than 10 pounds of force to open. (See PTO at 3, ¶ 12). The doorway was barely wide enough for his wheelchair to fit through and the sink was too low for plaintiff to fit his knees underneath it. (See Montano Decl. at ¶ 24(b)). Plaintiff could not use the faucets on the sink and the towel dispenser was too high. (See id.). Due to the difficulty plaintiff had with the bathroom in Room 20, he used the sink in the hallway. (See RT at 10).

13. While living in Room 20, plaintiff repeatedly asked defendant's employees to modify the bathroom door and sink to allow him access. (See PTO at 3, ¶ 13).

14. In or about May 2011, defendant's employees informed plaintiff that he was going to be moved to a room with less space for his wheelchair because defendant wanted to use Room 20 to house female residents. (PTO at 3, ¶ 14). Plaintiff informed

Page 1124

defendant's employees that he did not want to be moved to the new room because it did not provide enough space for him to move around in his wheelchair and he could not enter the bathroom. (Id. at ¶ 15).

15. On June 2, 2011, plaintiff delivered a letter to defendant requesting that he not be moved from Room 20. (PTO at 4, ¶ 16). Defendant responded to plaintiff's letter of June 2, 2011, stating, in part, that plaintiff " will be allowed to stay in his current room. Even if he is moved to a different room within this facility, any of the rooms he has been given a choice to select, will accommodate his wheelchair." (Id. at 4, ¶ 17).

16. From January 11, 2012, to January 23, 2012, plaintiff was hospitalized at California Hospital due to stomach and kidney problems. (See RT at 9; PTO at 4, ¶ 18). When plaintiff returned to Bonnie Brae, he was moved to Room 2. (See PTO at 4, ¶ 18).

17. Defendant does not need plaintiff's permission to move plaintiff from one room to another. (See RT at 7-8). Defendant has a policy whereby patients lose their bed if they are gone for more than seven days. (See id. at 82-83).

18. In Room 2, plaintiff had less room to move around because he had to share the room with three other people. (See RT at 23). Plaintiff also could not access the bathroom in Room 2 because his wheelchair would not fit through the doorway. (See id.; Montano Decl. at ¶ ¶ 10 & 24(k)).

19. Plaintiff also complained of Room 2 being too hot, and several times had difficulty breathing due to the heat. (See RT at 26).

20. Although Michelle Cayton, an employee of Bonnie Brae, testified that Bonnie Brae keeps the room temperature at 74 degrees, (see RT at 73-74), the court did not find the witness credible on this point, i.e., whether the temperature in plaintiff's room was too hot.

21. On February 10, 2012, shortly after returning from the hospital, plaintiff delivered a letter to defendant explaining the issues he was having with Room 2 and requested that he be assigned back to Room 20 or another two-person room of the same size or larger, with a bathroom and sink he could use. (See PTO at 4, ¶ 22; RT at 15-16).

22. Plaintiff asked that the bathroom doors be widened to allow him access with his wheelchair, and for defendant to change the door knobs to levers. (See PTO at 4, ¶ 23; RT at 16).

23. Plaintiff also requested that defendant fix the door to the bathroom in Room 20 so it did not jam and require great force to open, and change the sink's fixtures from knobs to handles so plaintiff could open and close the faucet independently. (See PTO at 4, ¶ 24; RT at 16).

24. Defendant informed plaintiff in March 2012 that he could no longer use the hallway sink outside Room 20 to wash his face and brush his teeth. (See PTO at 4, ¶ 19). Defendant said if plaintiff continued to use the sink, a formal complaint would be issued against him. (See id. at ¶ 20).

25. Plaintiff was never returned to Room 20. (See PTO at 5, ¶ 25).

26. In May 2012, plaintiff was moved from Room 2 to Room 7, a two-person room with a bathroom shared with an adjacent room. (See Montano Decl. at ¶ 21). While plaintiff could open the main door and the bathroom door in Room 7, plaintiff could not enter the bathroom because the toilet blocked his wheelchair. (See id. at ¶ 24(l)).

Page 1125

27. In December 2012, plaintiff was moved to Room 8, another two-person room, and remains in that room. (See PTO at 5, ¶ 1; RT at 16). Room 8's bathroom door knob was changed to levers and the bathroom doorway was widened.[2] (See PTO at 5, ...

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